May 02, 2005

OSHA, Feds Take A Step Toward Real Workplace Penalties

Yes, this is Jordan territory, but I always welcome co-conspirators. The more the merrier. This is reprinted from Confined Space.

I have written before that if you expect to die in the workplace, you’ll have more assurance that your killers will receive the appropriate punishment if you take a few fish and crabs with you. That’s because penalties -- monetary and potential jail time -- for violation of environmental laws are far stiffer than penalties for willfully violating the Occupational Safety and Health Act (OSHAct) -- even when it leads to the death of a worker.

Writing in the New York Times, David Barstow and Lowell Bergman, authors of the 2003 NY Times/Frontline Pulitzer-winning series on the crimes of the McWane corporation, identify the increased use of laws other than the OSHAct to bring large fines and long jail terms down upon employers who have killed workers.

This little noticed, but much welcomed policy change of the Bush administration seeks to address the problem of low OSHA penalties even for willful – knowing – violations of the law that result in the death of workers.

The initiative involves cooperation between OSHA, EPA, the Department of Justice and other agencies:

The initiative does not entail new legislation or regulation. Instead, it seeks to marshal a spectrum of existing laws that carry considerably stiffer penalties than those governing workplace safety alone. They include environmental laws, criminal statutes more commonly used in racketeering and white collar crime cases, and even some provisions of the Sarbanes-Oxley act, a corporate reform law.

The article notes the large environmental fine against a Delaware, Motiva refinery (that dissolved a worker in sulphuric acid while killing large numbers of fish and crabs.) Confined Space has also noted the large potential clean air act fines and jail sentences against W.R. Grace for exposing workers and the entire community to asbestos, and the Workers Memorial Day article included a short mention of large fines and potential jail sentences for mail fraud in a case where a worker was killed while working construction on a building under contract with the U.S. Postal Service. In that case, a Brooklyn contractor lied to the Postal Service (through the mail) about what it was paying its workers, thereby committing mail fraud which carries a possible 20 year jail term. The longest possible jail sentence for willful violation of an OSHA standard that results in the death of a workeris 6 months.

The initiative is clearly a response to the pressure generated from the two 2003 New York Times series that noted how the McWane corporation got away with corporate murder for years without any significant penalties, and the second series that focused on OSHA’s historical statutory inability (combined with political reluctance) to prosecute employers who deliberately ignored the law and killed employees. The Times series

described a bureaucracy in which aggressive enforcement was thwarted at every level. But as the series also demonstrated, OSHA’s reluctance to seek prosecution had also been fed by an assumption inside the agency that federal prosecutors have little interest in cases that have rarely resulted in prison sentences.

That assumption was correct -- if prosecutors focus exclusively on the OSHAct. In fact, of the 170,000 workplace deaths since 1982, the Times series found that only 16 convictions involving jail time had resulted—although 1,242 cases involving work deaths were determined by OSHA to involve “willful” violations by employers.

But despite the weaknesses in OSHA’s legislation,

All federal environmental crimes carry potential prison sentences, including up to 15 years for knowingly endangering workers. And unlike OSHA, the EPA has some 200 criminal investigators with extensive experience building cases for federal prosecutors. In 2001 alone, the agency obtained prison sentences totaling 256 years.

In addition, the Justice Department has 40 prosecutors in its environmental crimes section, compared to only one who focuses on workplace safety crimes.

This whole story has a bit of a “man-bites-dog" flavor to it:

The effort is noteworthy in an administration that has generally resisted efforts to increase penalties for safety and environmental violations It has declined to support such steps as making it a felony for employers to commit willful safety violations that cause a worker’s death. Such violations are currently misdemeanors, punishable by up to six month in jail. Instead, the administration has emphasized a more collaborative approach, offering companies increased technical assistance, for instance, on how to comply with new regulations.

But despite the success of this program in several cases, the administration has been reluctant to publicize its efforts. It cancelled a press conference to announce the program, demoted it from a “Worker Endangerment Initiative” to a “policy decision,” and neither acting OSHA Assistant Secretary Jonathan Snare, nor DOL’s head attorney, Solicitor Howard Radzeley would speak to the Times about the program.

For those of who frequent (and write) Confined Space, these developments are welcome and encouraging, but ultimately barely even half a loaf. First, the Administration’s reluctance to publicize the program indicates that they’re rather intimidated by backlash from their corporate friends. One wonders about the longevity of the program if significant corporate resistance develops. One also wonders about how effective the program's deterrent value will be if it's not widely publicized.

Finally, while I certainly welcome the large fines and jail sentences in the cases mentioned, these will only apply when investigators can identify other laws – environmental, mail fraud, securities, etc – that have been violated. Where does this leave the guys crushed in collapsing trenches or who fall two stories from an unsafe scaffold? OSHA handed down 446 willful citations in Fiscal Year 2004 (compared with 607 in FY 1999). It is unclear how many of those involved the death or serious injury of a worker, but the handful of cases that OSHA is able to prosecute with the assistance of the EPA or Postal Service will mostly likely not apply to more than a small handful of these.

The only answer here is to pass legislation that strengthens OSHA’s ability to impose large fines and jail sentences even where no environmental or securities law has been violated -– penalties that will actually create some real deterrence for employers who would seek to cut a few corners and save a few bucks on the lives of their employees.

Congressman Major Owens (D-NY), along with Senators Jon Corzine (D-NJ) and Ted Kennedy (D-MA) have introduced the "Protecting America’s Workers Act of 2005" (S 947) and the "Workplace Wrongful Death Accountability Act", which increase the penalties that OSHA is able to impose. Until this administration – and Congress – get serious about workplace killing by passing these bills, workers in this country will remain dependent on momentum generated by the few reporters like David Barstow and Lowell Bergman who take the time to do the research and describe the tragedies that too many workers still face and that too many employers still get away with.

Until then, the main message heard by employers may be “Try not to kill your workers, but for God’s sake, protect those fish!”